Evans v First Secretary of State and others

Planning appeal — Screening direction — Secretary of State directing that proposals not EIA development — Whether inspector’s findings on appeal inconsistent with direction — Whether inspector granting permission unlawfully — Summary judgment against appellant — Appeal dismissed The appellant opposed plans by the second respondent university to demolish existing buildings in London N7, and construct additional student residential accommodation. The third respondent, the local planning authority, refused planning permission for the development. The university appealed to the Secretary of State, who, before the hearing of the appeal, considered whether the proposed development was one for which an environmental impact assessment (EIA) would be required. He found that the development would not be likely to have significant effects upon the environment by virtue of factors such as its nature, size or location, and he made a screening direction, pursuant to his power under regulation 9(1) of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, that an EIA was not required. The inspector allowed the appeal and granted permission. He found that although the development would have a significant effect upon the character and appearance of the surrounding area, this would not constitute an adverse consequence. The appellant challenged that decision under section 288 of the Town and Country Planning Act 1990. He contended that: (i) the inspector’s findings as to the effects of the development were inconsistent with the Secretary of State’s view that it would have no significant effects upon the environment; and (ii) if the inspector had considered that the development ought properly to be characterised as EIA development, he could not lawfully grant permission on the appeal, but should have invited the Secretary of State to reconsider his direction. The university succeeded in an application under CPR 24 for summary judgment against the appellant. The appellant appealed. Held: The appeal was dismissed. The appellant’s argument failed at the first hurdle. The judgments being made respectively by the Secretary of State, in deciding what screening direction to give, and the inspector, in deciding the planning appeal, were quite different. The inspector was neither making nor purporting to make an assessment of the development for the purposes of the 1999 Regulations, but was concerned rather with the planning merits. He did not find that the development would have significant effects upon the environment within the meaning of the 1999 Regulations, and, indeed, he did not have to address that question: the Secretary of State’s direction on that issue was decisive unless or until he himself cancelled or varied it. The appellant’s section 288 claim was doomed to fail, and there was no other reason why the case should be disposed of at a trial. There was no reason why summary judgment should not be given against him. Per curiam: An inspector should not invite reconsideration of a screening direction simply because he disagreed with it, but should do so only if he were to discover, during the appeal process, that the Secretary of State had proceeded under some misapprehension as to the nature of the proposed development, or the assumptions underlying it, or if other material facts came to light that appeared to invalidate the basis of the direction. Martin Edwards (instructed by Alan Edwards & Co) appeared for the appellant; Peter Village QC and James Strachan (instructed by Lawfords) appeared for the second respondent; the first and third respondents did not appear and were not represented. Sally Dobson, barrister